Buying country properties and public rights of way

To quote a friend; “the very words ‘footpath’ and ‘bridleway’ arouse hot passions in normally sensible people” – well, they certainly did in him, when his horse got stuck on some loose barbed wire trailing from a damaged fence, resulting in a very expensive trip to the vet. It is therefore well worth exploring what the rights and wrongs are, if you own land, or are thinking of buying land, with public rights way over it. Forewarned is, after all, forearmed – and forearmed is something I would strongly recommend, when faced with a band of militant ramblers demanding access across your land.

First, a bit of background. There are a number of different types of public rights of way: bridleways and footpaths are simple as long as you remember that footpaths really are for walkers only (try telling that to the next cyclist you see on one). Restricted Byways are open to walkers, cyclists, horse riders and horse drawn vehicles; the incongruously named “BOATs” (Byways Open to All Traffic) are open to the same, plus motor vehicles. Highways are of course the ultimate end of the spectrum. A public right of way can be established in one of three ways: either via an express dedication by the landowner, or presumed dedication (where it has been used for as long as anyone can remember), or thirdly by deemed dedication. Deemed dedication, is the one to watch and occurs where the public have used a right of way for 20 years or more, as of right. Section 31 of the Highways Act 1980 governs this should you wish to do a little light research, or throw the book at someone.

If you are in the process of buying land, standard enquiries of the Local Authority should reveal the existence of any rights of way. Further enquiries can also be made of the Highways Authority, for detailed information on the status of various rights of way. They are also the keepers of the definitive maps, which set out the status of all of the public rights of way in the country. Finally, the seller should be thoroughly quizzed: not just about what is already there, but also as to whether he is aware of anyone walking over his land, other than on designated rights of way. This could indicate a latent claim to have a path dedicated as a public right of way. For the record, extinguishing a right of way is extremely difficult as they are guided by the principle ‘once a highway, always a highway’. It therefore requires a legal event to close, divert or extinguish one – it follows, that you should not buy property on the assumption that it will be an easy exercise to close a right of way affecting it. Diversion is less troublesome, but still problematic.  

As the owner of land with public rights of way, your responsibilities include keeping the path clear from crops and obstructions (apart from hay or silage), ensuring gates and stiles are in good order (a minimum of 25% the cost can be recouped from the Highways Authority), not keeping animals known to be aggressive in fields crossed by rights of way and – my personal favourite – not putting up misleading signs, that might discourage access. I am quite sure that the landowner who thoughtfully warned walkers to beware of the adders on his land was not intending to mislead. But whether the powers that be would have seen it the same way, is a very moot point.  

Anyone owning land of any size, should also be on watch for individuals using their land, as though it were a public right of way, or taking shortcuts across existing paths. If this is left unchallenged, it may form a basis of a claim for a new right of way based on deemed dedication. If you notice such behaviour, the key is overtly to demonstrate to the public that you have no intention to dedicate it as a right of way. Signs stating that you are allowing use of the path on a permissive basis only, can withdraw permission at any time and have no intention to dedicate it will help, as will completely blocking off the path for a few days every year and installing locked gates. Consider also lodging a declaration with the council stating that you do not intend to create any new rights of way; if you do, read (and ensure you understand) section 31 Highways Act first, or get a solicitor to do it for you.

One final piece of advice (and I only add this because it is true), do not discharge firearms above walkers heads to “get their attention” – even if they have strayed from the path and are trampling your crops. They do not like it and tend to report you to the police.  

About Elizabeth

Despite being one who feels the cold, Elizabeth braved a move to Northumberland and has worked there as a solicitor with the firm of Dickinson Dees LLP, in the Agriculture, Farms and Estates Team, where she started life as a trainee in 2003. As part of this specialist and nationally renowned team, she works both for a number of larger estates and trusts on an ongoing basis and also on one-off matters, covering the range of rural property law, including; sales and purchases, sporting rights,rights of way, easements and tenancies, to name a few. Outside the office, she nearly managed to get sent to the North Pole, loves the occasional hunt with the CVNNH and continues to try and break the 4-hour mark for a marathon. She lives with her husband, a terrier and a very silly basset.

She can be contacted through Dickinson Dees on 0191 279 9000